PUTRAJAYA (Dec 5): The Malaysia Competition Commission (MyCC) on Monday (Dec 5) failed to obtain leave (permission) to appeal before the Federal Court over a Court of Appeal decision in April last year, which allowed Grab Holdings Inc and two others to challenge the proposed decision by the commission to impose a RM86.77 million fine on them.
With the decision on Monday, the merits of the challenge by Grab, MyTeksi Sdn Bhd and GrabCar Sdn Bhd will be heard in the High Court.
The three-member Federal Court bench led by judge Datuk Nalini Pathmanathan ruled that the application for leave by MyCC to have nine questions of law be decided by the apex court should be dismissed.
“The issue before the court is whether the proposed decision by MyCC [to impose the fine] under Section 36 of the Competition Act 2010 is amenable to a judicial review. While that is a question of law that can be answered at this juncture [by this apex court], or after the judicial review in the High Court, given the factual matrix of this case, and the length of time that had elapsed, the court is of the view that the matter should be disposed of in its entirety in the High Court.
“This is with the express direction from this court that MyCC is given the liberty to raise the issue of amenability and jurisdiction all in the High Court and subsequently in the Court of Appeal and Federal Court, if they so choose,” she said.
The bench that also comprised Datuk Seri Hasnah Mohamed Hashim and Datuk Mary Lim Thiam Suan also ordered MyCC to pay total costs of RM30,000 to Grab and the two others.
Grab’s counsel Datuk Malik Imtiaz Sarwar, who appeared with Yvonne Lim, had opposed to MyCC’s leave questions on the grounds that the judicial review is pending for a hearing in the High Court, and that the parties should be allowed to go into the hearing there first and, if so chooses, then come up with the grounds.
Malik added that MyCC does not have the locus standi (legal standing) to make the application, as they are the putative respondent and it has no right to be heard, as the application for leave in the High Court was done on an ex-parte basis.
“Hence, they cannot come to the Federal Court to pose these questions, as they have no right to be heard in the first place, as they were only invited by the Court of Appeal to do so,” he added.
MyCC’s counsel Datuk Seri Gopal Sri Ram, who appeared with Kwan Will Sen, had argued that the commission should be allowed leave, as this was only a proposed decision that was supposed to be imposed on Grab and two others, and not a final decision and, hence, it was not amenable to a judicial review.
He also argued that if a decision had been made, then Grab can also go to the Competition Appeal Tribunal to argue it out first.
The former Federal Court judge further argued that the appellate court decision had recognised MyCC as an aggrieved party, and said the respondent (MyCC) is the proper person to be heard.
“Hence, MyCC has the legal standing to file for leave to appeal, and that the questions posed are important in nature for determination for a body like MyCC,” he added.
In April last year, a three-member Court of Appeal bench unanimously allowed Grab and two other companies leave (permission) for their legal challenge to be heard on the imposition of the proposed fine to be heard on its full merits.
Judge Datuk Hanipah Farikullah, who led the bench, said there are merits in the appeal based on the evidence, and there is an arguable case which can be argued further in the substantive stage.
"This is not a frivolous and vexatious application by the appellants. The High Court judgement [to strike out the judicial review] is set aside," she said in the unanimous decision.
Sitting with her were judges Datuk Hadhariah Syed Ismail and Datuk Hamzah Hashim.
Grab and its two subsidiaries sought the judicial review in the High Court in February 2020, following MyCC's proposed fine. However, the application was dismissed, as the court deemed the move premature, given that the proposed decision was not yet final.
Grab is accused by MyCC of allegedly “abusing its dominant position by imposing a restrictive clause on its drivers, which effectively prevented its drivers from promoting Grab's current and potential competitors on e-hailing platforms and in transit media advertising”.